A Wisconsin man who was arrested after having sex with the carcus of a dead dear argued that he could not be prosecuted for having sex with the deer because the animal was dead at the time.

The judge (ruling on a pre-trial motion) said that the primary focus of the criminal statute dealing with crimes against sexual morality is on "human behavior and on protecting sexual morality in the community, and not necessarily on animal protection".

This looks like a major FUBAR. Mind you, once the police were taken under fire they had the right to shoot back but it looks an awful lot like they screwed up before the raid (whomever they were there to get sure wasn't there). The closing of ranks afterward has not resulted in any persuasive argument for the raid; the police haven't told us the dealer actually lived there with his grandmother or that the house was in his name or that a huge meth lab was in the basement or anything else persuasive.

A more indepth discussion has been going on between Radley Balko and Orin Kerr:

19 November 2006

A while back I posted a video from YouTube about a kid getting tazed in a university library. Comments here and elsewhere made me think that maybe I should post laying out what I think the different levels of force should be generally.

Hand to Hand - This ranges from grabbing someone by the arm and yanking them out of their car thru the all too typical struggles when people resist being handcuffed all the way to out and out brawls. Typically, most confrontations do not go above this level.

Capstun - The second most often used tool in a physical confrontation, this is more commonly known as "macing" someone. This is what usually happens when an officer perceives that someone is proceeding to physical combat against him or is being very resistant. It is painful and takes away sight and breath but has a low risk of actual harm. One problem is that it does not always work. Anyone who has spent any time with officers has heard them tell stories of people whom the spray did not effect. Another problem is that some officers do not like the spray. I've heard more than one officer complain about how using it can mean he gets it in his eyes and lungs as well; of course, this is both painful and dangerous for the officer.

Nightstick - I can't remember the last time that I heard of an officer using a nightstick (when not wearing a pink bunny suit). I think that, in general, it has been supplanted by capstun on the less lethal side and tazers on the more lethal side. There are circumstances wherein neither of those two options is valid and the nightstick is called for (like the capstun spray or tazer malfunctioning) but the nightstick isn't likely to be used as much as it used to be.

Tazer - This is a step down from the use of lethal force. Tazers should be used in those situations wherein the officer is faced with serious harm or death but can avoid it by using the tazer instead of using a firearm. An example of this would be an officer facing down someone with a knife. There are obvious reasons why an officer should not close with this person. Prior to tazers the options would have been to put his life in significant danger by closing with the knife wielder or use of a firearm. Now the officer can stand off and incapacitate the knife wielder without putting himself in danger.

There are obvious dangers with applying an incapacitating electrical shock to a person. There are persistent anecdotal claims of death caused by use of tazers and I strongly suspect that at least some of them are well founded (although it would seem to be a very small percentage). Unfortunately, some appear to be in denial over this and when sold tazers seem to be marketed as a replacement for capstunning. They're not. The potential lethality - if only for those with medical conditions or of a certain age - means they should not be used as readily as less lethal means. HOWEVER, this does not mean that tazers should not be available for officer use. The probability of killing someone thru the use of a firearm is much higher that it will ever be thru the use of a tazer. Faced with a valid choice between tazing or shooting an officer should taze every time.

Rubber Bullets - Although I've heard of prisons using these (and rubber grenades), I've never heard of police forces (I may be showing some ignorance here). Rubber bullets are a less lethal option. I say less lethal because if rubber bullets hit a vulnerable spot (eye, temple, etc.) they can be deadly. However, in most applications they are not. This option is something which could be used if the knife wielder mentioned above was down the street, beyond the range of the tazer's wires. It is also a method for use against groups of people; if charged by a group of people rubber bullets are an effective means of breaking the charge.

Lethal Force - Not going to insult everyone by telling them that this means the officer is required to use a firearm.

---------- ---------- ----------

Drawing bright lines as to when escalation should occur is almost impossible. Factors which will cause different reactions will be the person confronting the officer (an 80 year old grandmother is going to get treated differently than a 350 lb. steroid freak), how many officers are present, how many non-officers are present, and probably an infinite number of other factors. Each situation must be addressed according to the situation at hand.

One thing we must remember is that the officer is nor require to "fight fair." He is allowed to react in a manner which is meant to insure his safety and bring the situation under control. This means that he can escalate beyond what is offered to him. Of course, the reaction must still be proportionate and that will vary from case to case. If the 80 year old grandmother calls him a "whipersnapper" and swings her purse at him he isn't going to be justified going for his tazer. On the other hand, if the 350 lb. steroid freak comes out of his car mumbling something about God's vengeance and starts chasing the 140 lb. officer the officer could very well be justified going straight for the tazer (maybe even the pistol).

So, I am left with the question: how would I advise officers in a similar removing a resistant person from the library situation to act. I'd advise them to "lay hands" on the guy (do police everywhere use that phrase?), put him in handcuffs, and then hook him under the arms and drag him out like they finally did. If he does anything stupid - resist getting handcuffed, flop around on the floor to keep you from lifting him, hook feet in doorframes, yell for others to jump you - capstun him. Get control and get him out; don't give the mob time to form.

Steve, you did this sort of thing for a living once upon a time. Comments? (or from anyone else)

Okay, so we all watched the Ohio State - Michigan game. My three comments: (1) Great game. (2) Either one of those teams would destroy a badly over-ranked USC (USC is always over-ranked). (3) Neither of those teams would have been undefeated if they had been in the SEC. They each shredded the other's vaunted defense and that would have happened much sooner if they'd been playing the likes of LSU, Florida, Arkansas, Auburn, etc.

Who gets the championship game? We've seen who wins between OSU and Michigan so another team should get its shot. It should probably either be Florida or Arkansas (depending on who wins the championship). However, I predict it will be USC. This is a mistake. I'm not sure an SEC team in a single game can beat OSU, but I'm certain that OSU will manhandle USC.

Oh well, the basketball has started so we UK fans are starting to wander away from that game which fills time until the real season starts anyway.

18 November 2006

The Richmond jail is old and incredibly inadequate. The new sheriff points it out, but of course everyone's been pointing this out for years. Nothing is going to happen until either that jail falls in on itself or somebody wins a massive law suit.

And probably not even then. This is, after all, the city which was sued by its own judges because their courts were inadequate and in a condemned building.

Clearly, this kid is resisting. Yes folks, passive resistance is still resistance and can require police to use force. The video starts with the guy yelling at the police don't touch me and the kid absolutely refuses to stand after several commands. That is going to cause some sort of physical intervention. Personally, I think they probably should have grabbed the guy, cuffed him, and dragged him out. Anyway, I'd really like to know what happened before the video started to make the campus police come after this guy. I doubt they are there just to harass some kid.

This is either the world's worst burglar or fake. What makes me suspicious (other than the fact the guy seems invulnerable) is that it's during the day and at least once the camera seems to zoom in. And why can't he break the glass on that door? Still, the video quality is very typical of store videos I've spent hours squinting at and I can't see someone going into a package store and doing that much damage just for a prank video.

15 November 2006

Every used car salesman business man has a dream of joining the mile high club. But doing it in the seats? Geeze. The attorney says it was all a misunderstanding about an ‘unidentified’ disease. Yea right.

"The facts are remarkable. Plaintiff, Susan Frunz, and her two guests were in Frunz’s home in Tacoma, Washington, when police surrounded the house, broke down the back door and entered. The police had no warrant and had not announced their presence. Frunz first became aware of them when an officer accosted her in the kitchen and pointed his gun, bringing the barrel within two inches of her forehead. The police ordered or slammed the occupants to the floor and cuffed their hands behind their backs—Frunz for about an hour, until she proved to their satisfaction that she owned the house, at which time they said 'never mind' and left."..."In short, we must ask: Why is this case here? There may have been some justification for going to trial because there were disputed questions of fact about how the officers behaved during the course of the intrusion into Frunz’s house. But a jury made up of seven members of the community heard the evidence and unanimously ruled in Frunz’s favor. By not only finding defendants liable, but also imposing punitive damages, the jury determined that the officers acted in reckless or malicious disregard of plaintiff’s constitutional rights. Only the most misguided optimism would cause defendants, and those who are paying for their defense, to appeal the verdict under these circumstances. Surely, the citizens of Tacoma would not want to be treated in their own homes the way the jury found officers Stril, Morris and Alred treated Frunz and her guests. A prompt payment of the verdict, accompanied by a letter of apology from the city fathers and mothers, might have been a more appropriate response to the jury’s collective wisdom."10

10 "Defendants and their counsel shall show cause within 14 days why they should not be assessed double costs and attorney’s fees for filing a frivolous appeal. Fed. R. App. P. 38."

Bob Beasley, the Commonwealth Attorney for Powhatan, has filed murder charges against Khalil Jerry Walker, the person who drove away from the check point and led police on a chase that got up to 100 mph. Commonwealth Attorney Beasley has actually charged Walker with four charges: misdemeanor DUI, felony driving on a suspended license, felony eluding, and 2d degree murder.

It's an interesting case to try to unravel. Admittedly, when I first read that it was a felony murder charge I thought that it was a stretch. Somewhere from the dark recesses of my mind I remembered a list of felonies which could be used in felony murder. However, after doing a little bit of research, I found out that this is only if the felony murder is in the 1st degree. There is a specific statute for 2d degree:

The killing of one accidentally, contrary to the intention of the parties, while in the prosecution of some felonious act other than those specified in §§ 18.2-31 and 18.2-32, is murder of the second degree and is punishable by confinement in a state correctional facility for not less than five years nor more than forty years.

Still, I'd never heard of a felony murder charge based upon an eluding charge. I poked around a little with FastCase last night and found one case wherein it was the underlying charge, Bazemore v. Commonwealth. However, in Bazemore the defense didn't contest it, except to argue that an instruction was wrong (thrown out as not preserved by objection). In other cases the Virginia appellate courts seem to ignore the eluding and concentrate on whatever felony led to the eluding. Specifically, the Virginia Supreme Court, in Montague v. Commonwealth, was faced with a situation wherein a person in a stolen car fled a checkpoint, was pursued by an officer, and struck and killed a child. While the flight was an important part of the case the court's analysis was based upon the theft of the car. However, this case doesn't exactly fit because the Commonwealth seems not to have presseludinging as the underlying charge. So, basing a felony murder on eluding appears to be novel.

Anyway, the issue of whether eluding is a solid basis should be a moot point. Assuming the felony driving suspended stands up there is a case which almost mirrors this one. In Davis v. Commonwealth the court held that a defendant who fled the police because he was driving with his license revoked (a class 6 felony) was guilty of 2d degree murder when he hit a police car and killed his passenger. The question then becomes whether the death of Deputy Green was part of the res gestae of the felony driving without a license. In other words, was his death a part of the crime as determined by its close connection in time, distance and continuity of action, as part of the same criminal enterprise. See Motague. Here the case of Haskill v. Commonwealth, might be somewhat instructive. In Haskill a group of men attempted to commit a robbery. When their robbery attempt failed they fled and the victim pursued. One of the would be robbers shot and killed him to facilitate escape. The court ruled that in this case a fact finder could find the escape intertwined with the crime and set a rule:

We do not say, however, that in every case a homicide committed during escape from a felony must be construed, as a matter of law, to come within the felony-murder statute. Usually, as in the present cases, the question will present an issue of fact to be determined from the evidence.

So, the decision as to whether the death of Deputy Green was part of the res gestae of the felony driving will be up to the jury.

The connection in time is easy to make. Deputy Green was starting to pursue while the ongoing crime of felony driving suspended was ongoing. Continuity of action and being part of the same criminal enterprise are also fairly simple to show. Walker was attempting to escape from police and while he was trying to escape was continuing his felonious driving. Distance is the one element which might be somewhat harder to prove. In most of the cases I looked thru the homicide is something within an immediately proximate zone. For instance the ones involving vehicles seem to all be about the driver wrecking into someone and causing a death. Nevertheless, this is not the type of felony which is a close up felony. If someone is fleeing down country roads in a rural county at 100 mph the range of effect is going to be much larger than a mugging. An objective person would understand that felonious driving and fleeing will cause officers to converge from other roads and do so at a high rate of speed in order to intercept or pursue - clearly endangering their lives. Thus the distance which would be considered "close" in this felony driving charge is going to be much larger than in most felonies. Clearly, the Deputy was within the range of those reacting to the crime and flight.

The res gestae satisfied about the only thing left to show is mens rea. Under the statute this is satisfied if the defendant acted in a manner which demonstrates "extreme recklessness demonstrating total indifference to human life." Cotton v. Commonwealth. Driving in a rural county, at night, at 100 mph with deputies in pursuit fulfills that nicely.

This is an interesting case. I look forward to reading how it turns out.

The biggest shift in politics this past Tuesday involved Mayberry’s own Andy Griffith. A Wisconsin man legally changed his name to ‘Andy Griffith’ in an attempt to ride the famous actors coat tales to become Grant County Sheriff. The shock for me is that Andy Griffith is going judicial on the guy. A lawsuit doesn’t fit his Mayberry, Matlock or his “I Love to tell the story" image.

11 November 2006

War makes strange giant creatures out of the little routine men who inhabit the Earth. -WWII correspondent Ernie Pyle.

Some veterans bear visible signs of their service: a missing limb, a jagged scar, a look in the eye. Others may carry the evidence inside them: a pin holding a bone together, a piece of shrapnel in the leg - or perhaps another sort of inner steel: the soul's alloy forged in the refinery of adversity. Except in parades, however, the men and women who have kept America safe wear no badge or emblem. You can't tell a vet just by looking.What is a vet?He is the cop on the beat who spent six months in Saudi Arabia sweating two gallons a day making sure the armored personnel carriers didn't run out of fuel.He is the Nebraska farmer who worries every year that this time the bank really will foreclose.He is the barroom loudmouth, dumber than five wooden planks, whose overgrown frat-boy behavior is outweighed a hundred times in the cosmic scales by four hours of exquisite bravery near the 39th Parallel.She - or he - is the nurse who fought against futility and went to sleep sobbing every night for two solid years in Da Nang.He is the POW who went away one person and came back another - or didn't come back at all.He is the Quantico drill instructor who never has seen combat - but who has saved countless lives by turning slouchy no-'counts into soldiers, and teaching them to watch each others' backs.He is the parade-riding legionnaire who pins on his ribbons and medals with a prosthetic hand.He is the career quartermaster who watches the ribbons and medals pass him by.He is the anonymous hero in the Tomb of the Unknowns, whose presence at Arlington National Cemetery must forever preserve the memory of all the other anonymous heroes whose valor died unrecognized with them on the battlefield or in the ocean's sunless deep.He is the old guy bagging groceries at the supermarket - palsied now and aggravatingly slow - who helped liberate a Nazi death camp, and who wishes all day long his wife were still alive to hold him when the nightmares come.He is an ordinary and yet an extraordinary human being - a person who offered some of his life's most vital years in the service of his country, and who sacrificed his ambitions so others would not have to sacrifice theirs. He is a soldier and a savior and a sword against the darkness, and he is nothing more than the finest, greatest testimony on behalf of the finest, greatest nation ever known.

-This editorial first was published in 1995 and has appeared annually since 1999.

The girl cried in court October 24 as the judge read the charges to her.

"I wasn't even there," the girl said. "I know these guys but don't understand why they're using my name.""That may be all true but at this point; I just don't know," the judge said."Talk to your attorney."

07 November 2006

"As they approach, they take the newspaper or the paper towel into the feeder, they shove it in there with a stick, and then they would come back later on … with a vacuum apparatus (like) a shop vac and suck the coins out."

I hope other states will follow suite. I know in West Virginia, the state troopers do at least 100 mph on the interstates – now, the rest of us do 85-90, but still, isn’t it the job of the police to slow us down? “Wild and Wonderful” I guess.

A while back I saw part of this guy's statement on TV when I was back in the Lexington, Kentucky area for homecoming (Centre). I asked if anybody had a copy and lo and behold, Michael Pratt came through.

My name is William Henry Mece, and I am the defendant. I am here to be final sentenced on this illegal and unconstitutional conviction. I intend to appeal and I have instructed the Court's appointed attorneys to do so. If we are in fact a nation of laws, where the rule of law applies to all, then this conviction will not stand.

All I ever asked for, pleaded for, demanded and expected was and is a fair trial under the laws and Constitution of this Commonwealth and these United States of America. It is that Constitution of the United States of America that every soldier, sailor, airman and marine, past present and future, is sworn to defend against all enemies, foreign and domestic. Such a lawful, constitutional fair trial was and is apparently beyond the capacity of the Commonwealth, its Attorney, its department of Public Advocacy, and this Court.

I stand convicted based on the coerced and involuntary statements made as part and parcel of what this Court recognized as an involuntary and coerced plea; lies of my own telling, proven tobe lies. There exists no credible testimony, no credible physical evidence, and not a single eyewitness {the can or did} say I did this, had anything to do with this, or was within 100 miles of these murders. Therefore this conviction can only be based upon my own lies, wrongfully admitted by this Court in order to get a conviction, not under the laws of this State and Nation, but by any means necessary. In doing so, this Court follows in the best traditions of the "legal" systems of Nazi Germany, Communist China, and Soviet Russia, where I would have gotten to see and hear all the evidence against me, which I have not in this case.

The Court relied on the case of U.S. vs. Marks, 209 F3d 577 to allow those statements to be heard by a jury. In that case the 6th Circuit Court of Appeals allowed post plea statements to the police because those statements were not to the attorney for the prosecution and therefore were not forbidden by law. This is not the case here where the statements used were made to Commonwealth Brian Wright on 15 Nov 04 and 15 Dec 04 as part of and required by the written plea agreement. That plea had not been finalized, as this Court made clear on15Nov04 when it reserved the right to reject the plea under R.Cr. 8.10. Mr. Wright recognized it on 15 Nov 04 as well on the record in asking to keep the record sealed.

The true case precedent should be and is Roberts vs. Commonwealth, Ky, 896 SW2d 4 (1995), as I brought to the attention of the Court's appointed attorneys before trial. In that case, the Kentucky Supreme Court, this states "highest" court, held that although the defendant did not keep his part of a "plea bargain" - just as I did - the statments he made as part of that plea agreement are not admissable at a subsequent trial. He, too, lied to the Commonwealth and the police, as they lie to us. KRE 410 and Roberts are the law as I stand here today.

All I ever wanted and expected and worked for was a fair trial under the law, applied equally to the State and the defendant. I expected too much, where the Commonwealth Attorney has not been held to the rule of law, including KRE 410, the rules of discovery, and this Court allowed him to present what he knew were material and false evidence and flagrantly lie to this Court, the defense, and the jury and this Court refused to correct it.

I bemoan the loss of the American ideal of a fair trial under the law if this conviction stands, if it ever existed. It will have ceased to exist for my children and their children, the Constitution rendered moot, outdated, and antiquated, except as propaganda. We have come much further down the road to a police state than even I feared or anyone not on trial and caught up by the system would ever expect or believe. Long Live the King, His Gentry, and His Courts. I can only hope the higher courts prove me wrong.

No less than 108 people have been from Death Row, not on technicality but on the physical evidence, having been convicted and sentenced by Courts in proceedings just like this one. I am not the first wrongfully convicted and I will not be the last. Unfortunately the evidence in this case does not and can not prove my innocence, it can only not prove me guilty.

Throughout this trial, the prosecutor was permitted to put my religious faith on trial and claim I was some sort of occultist pagan witch. Not even my ex-wife and all her lies supported such prejudicial nonsense. By making it an issue, the State put into evidence my Jewish faith. I am proud to be a Jew, as my ex-wife and my children were and may still be. To understand what that means, one only has to look to the Old Testament of the Christian Bible and these words credited to Jesus Christ founded there, written in red, I would point out that Numbers 35:30 in a modern translation of the original Hebrew says:

"Whenever someone kills a person the evidence of witnesses is required for the execution of the murderer. The evidence of a single witness is not sufficient for putting a person to death."

So says the law older than Western Civilization itself.

The stands no second witness in this case, only the desperate coerced lies of a defendant forced to say what the State wanted to hear to fight in vain for a fair trial under the law. There is no one who said or can say they saw me kill the Wellnitz family or that I was there. I didn't and I wasn't. Not my lying vengeful ex-wife who wanted and got me out of her life, not my co-defendant who risked her life to come forward to finally tell the truth.

I stand before the Court for sentencing. This Court has the power to condemn me to die in the State's prisons, be it a death sentence in the 9 to 15 years the appeals take if not overturned, or under a Life Sentence. Parole is not, and has never been, a realistic possibility. The Court rejected the Commonwealth's first offer of 50 years on the false possibility of of parole after 12 years, and yet stands today possibly prepared to sentence me to those same 12 years before I die.

May the One True G-d, called Our Father in Heaven by the Jewish Carpenter Jesus, have mercy and find forgiveness for the police, Mr. Wright, those witnesses who testified falsely with the best intentions against me, and this Court. May no man suffer ill on my account.

04 November 2006

Wherever a firearm is bought, a background check is necessary. But its especially imperative if a white supremacist is buying a gun at a Pawn Shop. “Loaner Too” should have know to check this guy out. Then again, maybe they didn’t want to know.

The motivation seems to be that if you dig deep enough into abortion records, there’s going to be something illegal going on. Hopefully this is not the case and the AG has some hard evidence of these ‘possible crimes,’ otherwise this is an obvious ploy to target abortion clinics and hype up the base in a close election.

What drew my attention in the article was the scenario. A 15 year old asks an 18 year old to have sex. She agrees "as long as he stops when I tell him to." During the sex she feels pain and tells him to stop. He stops in "five or so seconds."

Ummm . . . That's mighty thin.

Anybody got any info about this case? I suspect that the government might have actually argued that the entire situation was coercive and she had no real choice, no matter what she said. The paper implies that this was the situation but doesn't say anything about the government arguing it.

5) We all knowthat all legal shows are bad; ie Law and Order is terrible (I keep waiting for Law & Order: Grand Theft Auto). Blonde Justice fills us in on how bad this year's legal fare is: Shark and Justice

Ambush in Bartlette

Disclaimer

In case anyone out there needs this warning: This ain't legal advice. Everything in the blog is off the cuff and no one goes back and reads all the cases and statutes before blogging. The law may have changed; cases misread and misunderstood two years ago can still lead to a clinging misperception. Courts in your county, city, or State probably don't operate as described herein. Feel free to be inspired, but YOU MUST ALWAYS DO YOUR OWN RESEARCH OR HIRE A COMPETENT ATTORNEY TO DO SO because I haven't.